State v. Leatherman

Petitioner
Amy Lynn Leatherman, by counsel William T. Rice, appeals the
Circuit Court of Hampshire County's May 23, 2016, order
sentencing her to three concurrent terms of incarceration of
one to five years and twenty years of supervised release. The
State, by counsel Shannon Frederick Kiser, filed a response.
On appeal, petitioner argues that the circuit court violated
her constitutional right to equal protection and abused its
discretion in imposing her sentence.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
this Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
November of 2015, law enforcement received information that
petitioner, an adult, engaged in sexual intercourse with
T.W., who was approximately thirteen years old. Upon
investigation, petitioner admitted to these facts. According
to petitioner, she engaged in intercourse with the child on
at least three separate occasions.

In
January of 2016, petitioner was indicted on five counts of
third-degree sexual assault. The following month, petitioner
accepted a plea agreement whereby she would plead guilty to
three counts of third-degree sexual assault and be subject to
registration as a sex offender and extended supervised
release. In exchange, the State agreed to dismiss the
remaining two counts of the indictment. During the plea
hearing, the circuit court engaged petitioner in a plea
colloquy, during which she acknowledged that her plea was
knowing and voluntary. Petitioner also acknowledged that she
understood the terms of her plea agreement, including the
potential sentences for each count to which she pled. She
also acknowledged that she would be required to register as a
sex offender and submit to up to fifty years of supervised
release. The circuit court then accepted petitioner's
plea.

In May
of 2016, the circuit court held a sentencing hearing.
Petitioner argued that she should receive probation. The
circuit court, however, denied petitioner's request and
sentenced her to three terms of incarceration of one to five
years, to be served concurrently. The circuit court also
imposed twenty years of supervised release. Finally, the
circuit court ordered petitioner to pay the costs of the
proceedings and the victim's counseling fees. It is from
the sentencing order that petitioner appeals.

We have previously established the following standard of
review:

"In reviewing the findings of fact and conclusions of
law of a circuit court . . ., we apply a three-pronged
standard of review. We review the decision . . . under an
abuse of discretion standard; the underlying facts are
reviewed under a clearly erroneous standard; and questions of
law and interpretations of statutes and rules are subject to
a de novo review." Syllabus Point 1, State
v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Petitioner's
entire argument in support of her appeal is that the circuit
court erred in imposing her sentence because she was entitled
to alternative sentencing in the form of probation. According
to petitioner, her alcohol abuse and addiction, low IQ, and
lack of a prior criminal history entitled her to alternative
sentencing. Accordingly, petitioner argues that the circuit
court's sentence of three concurrent one to five year
terms of incarceration, twenty years of supervised release,
and lifetime registration as a sex offender was both an abuse
of discretion and a violation of her right to equal
protection. We do not agree.

Importantly,
we have held that "'[s]entences imposed by the trial
court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate
review.' Syllabus point 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982)." Syl. Pt. 2,
State v. Booth, 224 W.Va. 307, 685 S.E.2d 701
(2009). Here, petitioner does not allege that her sentence is
outside the bounds of the applicable statute or based on any
impermissible factor. Indeed, petitioner readily admits that
West Virginia Code § 61-8B-5(b) allows for imposition of
a sentence of one to five years. [1] Instead, petitioner argues
that, because of certain mitigating factors, imposing the
statutory sentence makes her punishment disproportionate to
her crimes. We do not find this argument persuasive because
petitioner admits that her sentence was imposed within the
applicable statutory guidelines and was not based on any
impermissible factor. Thus, it is not subject to appellate
review.

For the
foregoing reasons, the circuit court's May 23, 2016,
sentencing order is hereby affirmed.

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